WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 193/14

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 193/14 BEFORE: C. M. MacAdam : Vice-Chair J. Blogg : Member Representative of Employers A. Grande : Member Representative of Workers HEARING: February 3, 2014, at Toronto Oral Post-hearing activity completed on March 28, 2014 DATE OF DECISION: May 20, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1104 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated January 27, 2012 APPEARANCES: For the worker: For the employer: Interpreter: C. Tiano, Union Representative R. O., Employer s WSIB Manager N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 193/14 REASONS (i) Introduction to the appeal proceedings [1] The employer appeals a decision of the ARO, dated January 27, 2012, which assigned the worker s LOE benefit, effective August 25, 2011, to the Claim #563, arising from the March 22, 2011, accident (claim A), rather than to the Claim #491, arising from a March 23, 2011, accident (claim B). The employer is seeking that the LOE benefits be assigned between the two claims. [2] The worker chose not to attend the hearing. [3] At the outset of the hearing, the Panel indicated it would like to receive submissions on two Tribunal decisions, Decision No. 451/07R, and Decision No. 3155/00R, which address the issue of assigning benefits between claims. The hearing proceeded by way of written submissions. The employer s submissions are dated March 25, On March 26, 2014, the worker s representative sent a fax to the Tribunal indicating no additional submissions as he was in general agreement with the employer s argument and remedy. (ii) Background [4] The worker was hired by the employer as a Mechanical Technician in January [5] On March 22, 2011, the then 44-year-old worker injured his left knee when he lost his footing while stepping off a ladder. The initial diagnosis was left knee sprain. The claim was accepted (claim A). [6] On May 19, 2011, an MRI of the left knee indicated a flap tear in the medial meniscus. The worker underwent surgery on November 3, 2011, to repair the meniscus tear. [7] On March 23, 2011, the day after the earlier accident, the employer sent the worker to a medical appointment by taxi to have a Functional Abilities Form (FAF) completed. The taxi was involved in a motor vehicle accident (MVA) that resulted in neck and back injuries to the worker. It was recommended the worker remain off work for two weeks. A new claim was established (claim B). [8] The Board subsequently determined that a third party was negligent and fully responsible for the MVA. All current and future costs of the claim were removed from the employer s experience rating record. [9] The worker returned to modified work and there was no lost time from either injury until August On August 18, 2011, the worker was terminated by the employer on the ground that further modified work was not available. The employer reported to the Board that the worker was a temporary employee and that all temporary employees were being laid off. [10] The Case Manager had determined in the decision letter of September 12, 2011, that the worker s employability was affected by his work-related injuries after his layoff. The worker was paid LOE benefits from August 19, 2011, until he returned to work after his surgery on March 12, [11] On September 12, 2011, the Case Manager (CM) assigned full LOE benefits effective August 25, 2011, to the left knee claim (claim A) on the grounds that it resulted in surgery and hence was more severe than the neck/back injury. The employer objected to that decision on the

3 Page: 2 Decision No. 193/14 grounds that the full cost of the LOE benefits should be assigned to the MVA claim (claim B) and on the grounds that it was more significant. In the decision of January 27, 2011, the ARO determined that the left knee injury was the primary reason for the worker s inability to return to work after his August 11, 2011 layoff, and so confirmed the assignment of full LOE benefits to the left knee injury. The employer now appeals that decision to the Tribunal. (iii) Law and policy [12] Since the worker was injured in March 2011, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [13] Section 44 of the WSIA states in part: s.44.1 Every year or of a material change in circumstances occurs, the Board may review payments to a worker for loss of earnings and may confirm, vary, or discontinue the payments [14] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, apply in this appeal: #3, 224, and 300. [15] Operational Policy Manual (OPM) Document No , Payment and Reviewing LOE Benefits (Prior to Final Review), states, in part, the following: Reviewing LOE Benefits Material change reviews A worker who is eligible to receive benefits must report any material change in circumstances to the WSIB. Types of material changes to be reported include, but are not limited to, changes in health (medical) status earnings/income including Canada Pension Plan/Quebec Pension Plan (CPP/QPP) disability benefits paid because of the work-related injury or disease employment status availability for, or co-operation in, health care, WR with the injury employer or appropriate WT services, and optional insurance coverage. An LOE benefit may be adjusted at any time prior to the final review for any material change or failure to report a material change which occurs on or after January 1, The adjustment to the LOE benefit is effective from the date the material change occurred. [16] The ARO relied on OPM Document No , Transfer of Costs, which states, in part, the following: Law Workplace Safety and Insurance Act: s.84 If the WSIB finds that an accident or disease to a Schedule 1 worker was caused by the negligence of another Schedule 1 worker or employer, the WSIB may charge all or part of the claim costs to the negligent employer's cost record.

4 Page: 3 Decision No. 193/14 Policy If negligence is determined and claims costs have already been charged to the accident employer, all or part of these costs are transferred from the accident employer's cost record to the negligent employer's cost record. Guidelines Right of action/recovery In the case of an accident or disease to a Schedule 1 worker, the injured worker does not have a right of action/recovery against another Schedule 1 worker or employer. (iv) Relevant documentary evidence [17] Since the ARO decision of January 27, 2012, the employer has obtained an orthopaedic medical report, at their request, from an orthopaedic surgeon, Dr. Christopher M. Offierski. [18] In his report of November 29, 2013, Dr. Offierski provided a detailed description of both accidents. He opined that the initial reporting from both accidents indicated the MVA was more severe. Dr. Offierski noted five Board memos where the worker indicated his neck and back were the major reasons he was unable to return to work. He noted that the Board appears to have relied on the chiropractor s opinion in finding that the left knee injury had caused the worker to limp and so aggravated the back injury. Dr. Offierski found the torn medial meniscal and subchondral bone contusion injury to be compatible with the worker s accident getting off the ladder and he opined that the left knee had little or no impact on the symptoms or the treatment of the neck and back injury. [19] Dr. Offierski noted the worker was unable to perform his regular duties as a welder from March 22, 2011, until March He noted the worker s job duties required the worker to crawl around in the boilers which disabled him due to his meniscal tear in the left knee. Yet Dr. Offierski also noted the job duties of bending, stooping, turn/twisting of the neck and back would disable the worker due to his neck and back injuries. Dr. Offierski concluded the worker s inability to return to work during this period was equally attributable to the knee and spinal injury claims. [20] Dr. Offierski noted the worker s left knee arthroscopy and meniscectomy of November 3, Dr. Offierski also noted the operative report from Dr. Ogilvie that indicated no damage to the chondral surface of the knee. Dr. Offierski opined that the worker would have recovered from the injury by January 1, 2012, which is within the expected four-week timeframe. Dr. Offierski noted the worker had returned to regular duties on March 12, Dr. Offierski attributed the majority of the disability after January 1, 2012, to the injuries sustained to the neck and back. [21] Dr. Offierski then addressed questions put to him by the employer s representative. Dr. Offierski stated This worker sustained injuries to two different areas of his body which resulted in two different forms of disability. The injuries and the symptoms arising from these injuries are distinct. (v) Submissions [22] The employer s representative argues that the Case Manager erred in concluding that the worker s pending left knee surgery was evidence of significant disability, and in concluding the knee injury prolonged recovery from the spinal injury. The representative submits that both

5 Page: 4 Decision No. 193/14 injuries contributed to the worker s loss of earnings, and that there is an evidentiary basis to support the claimed division of loss of earnings between the two claims. The employer is seeking that the LOE benefits to paid to the worker in the following manner, as per the recommendation of Dr. Offierski: Assignment of LOE August 25, 2011 to December 31, 2011: 50% each between the two claims; Assignment of LOE January 1, 2012 to March 12, 2012: 100% to the neck/back claim; Cost relief under Operational Policy Manual (OPM) Document No % of the proportion assigned to the neck/back claim. [23] Concerning Decision No. 451/07R, and Decision No. 3155/00R, the representative argues that the legal principles raised in these decisions are not directly relevant to the present case. It is argued that the injuries in both those cases concerned two injuries to the same body part, whereas the instant appeal concerns injuries to different body parts, hence the claims are divisible. The representative notes the discussion of pre-existing condition in Decision No. 3155/00R, though he submits that the issue does not apply in this appeal as SIEF is not an issue here. [24] The representative reiterates that the worker had separate, distinct and divisible injuries and that apportionment is therefore both possible and appropriate. He quotes from Decision No. 3155/00R (at para 42) which quotes Athey v. Leonati [1996] SCR 458. [T]he court stated: Separation of distinct and divisible injuries is not truly apportionment; it is simply making each defendant liable only for the injury he or she has caused. [25] The representative argues that if LOE benefits are assigned to the neck/back claim, the cost relief should be granted for the LOE benefits under OPM Document No , in that the worker s loss of earnings since his layoff has been due in part to his spinal injury. It is submitted that documentation attesting to chiropractic treatment from May 2011 and February 2012 is proof of ongoing complaint. The representative relies on the ergonomic assessment of September 12, 2013, that concluded, based on a review of the physical demands analysis (PDA) of the pre-accident job, that more of the job duties would have greater impact on the back/neck compared to the knees. The representative relies heavily on Dr. Offierski s analysis and opinions. [26] The representative submits that there should be cost relief for the portion of LOE benefits assigned to the neck/back claim under OPM Document No (vi) Conclusion and analysis [27] After considering all the evidence, the Panel finds the appeal should be allowed. We find the two accidents in question caused two separate and distinct injuries to different body parts. We find the two injuries are divisible and hence subject to apportionment. The Panel finds that LOE benefits should be assigned to the neck/back claim, (claim B) for the period August 25, 2011, to September 2, 2011, and to the knee claim (claim A) from September 2, 2011, to November 2, 2011, on the basis of which accident made the greater contribution to the worker s impairment. Our analysis follows.

6 Page: 5 Decision No. 193/14 [28] Decision No. 3155/00R summarizes the case of Athey v. Leonati, [1996] 3 SCR 458. In Athey, the plaintiff suffered a disc herniation while doing an exercise routine at a fitness centre. He had had two prior accidents to his back, and it was accepted that the injuries resulting from these accidents were the responsibility of the respondents. He also had an underlying pre-existing back condition. The Court considered three of the six principles in responding to arguments for apportioning costs between the multiple causes. Those principles were described as: Multiple Tortious Causes; Divisible Injuries; and the Thin Skull or Crumbling Skull Doctrines.. With respect to Divisible Injuries, the Court found that separation of distinct and divisible injuries is not truly apportionment: it is simply making each defendant liable for the injury he or she caused.. [29] Athey is consistent with the principle that loss resulting from one injury should be separated from loss resulting from a different injury in cases where the evidence establishes that those injuries each separately and independently resulted in loss. In the case of such divisible injuries, the significant contributing factor test applies separately to each component of injury, and not to the impairment as a whole. [30] Decision No. 451/07R, and Decision No. 3155/00R concerned cases of multiple injuries to the same body part. Decision No. 3155/00R concerned a worker who injured his right knee in 1974 and again in Decision No. 451/07R concerned a worker who injured his neck at work in September 2001, and again in September, In each case, the Vice-Chair determined, following Athey, that the two injuries in each case were indivisible because the same body part was injured in each accident. In No. 451/07R, the Vice-Chair determined the claims could not be apportioned and instead assigned benefits according to which accident played a larger role in the worker s ensuing treatment and/or lost time. In Decision No. 3155/00R, the main argument concerned cost relief in relation to a pre-existing condition. There is no such issue in the instant appeal. [31] The Panel finds in this case that the two claims are divisible. The accident of March 22, 2011 caused a left knee strain. The accident of March 23, 2011, caused a neck and back strain. We find that LOE benefits arising from the claims may be apportioned according to the degree that each is responsible for the worker s wage loss. [32] The Panel takes no issue with most of the specialist, Dr. Offierski s recommendation concerning apportionment. Dr. Offierski noted the worker had been unable to perform his regular duties as a welder from March 22, 2011, until March He reviewed the worker s job duties as a welder for this period and opined that the worker would be disabled from his regular duties due equally to his left knee and neck/back injuries. On this basis, he recommended the worker s disability from returning to work during this period be equally attributable to the knee and spinal injury claims. The worker only experienced a wage loss from the time he was terminated as of August 25, On this basis, the worker s representative is claiming that the LOE benefit be apportioned at 50% between the two claims from August 25, 2011, to March [33] After considering all the evidence, the Panel finds the LOE benefits for the two claims should be apportioned as follows. For the period from August 25, 2011, when the worker was laid off until his knee surgery on November 3, 2011, we find the LOE benefit should be assigned to the neck/back injury, claim B.

7 Page: 6 Decision No. 193/14 [34] On June 23, 2011, the worker indicated to the Adjudicator that his neck and back were the cause of his disability and not his knee injury. He was then laid off on August 18, On September 2, 2011, the worker reported to the Adjudicator that he was able to perform his regular duties with caution for his knee, though not for his neck and back. He indicated his union local could probably find him a job despite his torn meniscus, it pops in and out. He indicated the union would not assign work to him because of his neck/back injury. On September 9, 2011, the worker had again indicated to the Adjudicator that he would be able to go to work if he just had the left knee injury. He indicated that he could work at his regular duties, despite his left knee popping in and out, but that he was in a real mess with his neck and back while he was waiting for his November 3, 2011 left knee surgery. While we note that the chiropractor, Dr. Supran, had reported on September 8, 2011, that the left knee injury was delaying recovery from the neck/back injury, we place greater weight on the worker s repeated reporting during the period in question that his neck/back injury was more debilitating than the meniscal tear in his knee. For these reasons, the Panel finds the neck/back injury was more significant in disabling the worker during this period than the knee injury, despite the pending knee surgery. [35] The Panel notes that Dr. Offierski apparently did not consider that the worker would have been disabled by the left knee surgery for the four-week period between the surgery date of November 3, 2011, and the recovery date of January 1, The Panel finds the worker s wage loss for that four-week period was primarily due to the left knee surgery (claim A) and the LOE benefit would be assigned to that claim. [36] Dr. Offierski opined that the worker s neck and back injury from the MVA was the major disabling factor after January 1, Dr. Offierski noted the operative report from the November 3, 2011 meniscal surgery had indicated nothing to suggest the worker would not recover within the expected four-week period, or January 1, Dr. Offierski then noted the several complaints from the worker concerning his neck and back after his return to regular duties on March 12, Dr. Offierski attributed the majority of disability after January 1, 2012, to the neck and back injuries. The Panel takes no issue with this reasoning. We assign the LOE benefits after January 1, 2012, until March 12, 2012, to the neck and back injuries (claim B). [37] The representative submits that there should be cost relief for the portion of LOE benefits assigned to the neck/back claim in light of the Board s finding that the third party was 10% negligent in the MVA. The representative relies on OPM Document No as the basis for a transfer-of-cost decision. Yet this issue was not before the ARO in the decision on appeal, and thus it appears that this is a new issue of which there is not yet a final Board decision. The Panel directs this issue back to the Board for further adjudication.

8 Page: 7 Decision No. 193/14 DISPOSITION [38] The appeal is allowed in part: Claim A is to be assigned LOE benefits for the period of November 3, 2011, to January 1, Claim B is to be assigned LOE benefits for the periods of August 25, 2011, to November 2, 2011, and January 2, 2012, to March 12, DATED: May 20, 2014 SIGNED: C. M. MacAdam, J. Blogg, A. Grande

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